Judgment:
ORDER
P. Sathasivam, J.
1. Defendant in O.S. No. 52 of 1978 on the file of District Munsif, Kallakurichi, is the appellant in the above appeal. The respondent, plaintiff in the said suit filed the same for recovery of Rs. 2,500 being-the expenses and damages by way of defamation.
2. The case of the plaintiff as seen from the plaint is briefly narrated hereunder:-
The plaintiff is a pawn broker. He is carrying on his business as 'Murugan Financiers' at Kallakurichi. He belongs to a respectable and noble family. The defendant has lodged a false complaint against the plaintiff before the Sub Inspector of Police, Kallakurichi, on 27.7.1976 under Sections 406, 420 and 120(B) I.P.C. The police have registered a criminal case against the plaintiff in Crime No. 648 of 1976. On account of the complaint, the plaintiff has to obtain anticipatory bail from the Sessions Judge, Cuddalore, and the plaintiff attended the Court of Judicial Sub Divisional Magistrate at Ulundurpet for a number of hearings. Finally the complaint was referred by the Station House Officer, Kallakurichi, as mistake of fact on or about 27.4.1977. The plaintiff underwent much mental agony, and he has spent more than Rs. 1,500 for his release. He values damages at Rs. 1,000 and therefore he prays for a decree as claimed.
3. The defendant filed written statement wherein he has admitted that the suit as framed is not maintainable. It is also barred by limitation. The defendant has not lodged false complaint against the plaintiff and the plaintiff has not suffered mental agony. The defendant is not liable to pay the expenses incurred by the plaintiff in the criminal case. There is no cause of action. With these averments, he prays for dismissal of the suit.
4. Plaintiff himself was examined as P.W.I and he has produced and marked Exs. A-l to A-8 in support of his case. On the other hand, the defendant has neither examined any one in support of his case nor marked any document. The learned District Munsif, after framing necessary issues and in the light of the evidence available on record, dismissed the suit Against the dismissal of the suit, the unsuccessful plaintiff filed appeal in A.S. No. 294 of 1981 before the Sub Court, Vridhachalam. The learned Subordinate Judge, after re-apprising the whole evidence, dis-agreed with the findings of the trial court, allowed the appeal and decreed the suit as prayed for.
5. Against the decree granted by the lower appellate court, the defendant has filed the present appeal before this court. While entertaining the second appeal, this Court has framed the following substantial question of law for consideration:-
'Whether the finding of the lower appellate court regarding malice in prosecuting the plaintiff is not sustainable in law?'
6. In the light of the substantial question of law framed, Mrs. Hema Sampath, learned counsel for the appellant, submitted that the lower appellate court committed an error in decreeing the suit when the plaintiff has not made out a case. In other words, she contended that there is no specific pleading regarding 'malice'. She further contended that at any rate, the suit filed by the plaintiff is clearly barred by limitation, and prays for interference in this appeal. On the other hand, Miss. B. Sivakamasundari, learned counsel for the respondent submitted that on the basis of proper pleadings and evidence, the lower appellate court rightly granted decree as prayed for. She also submitted that in the absence of any evidence either in the form of oral or documentary, it is not open to the defendant to raise any objection with regard to the decree granted by the lower appellate court. I have carefully considered the rival submissions.
7. Admittedly the plaintiff is a pawn broker and he is carrying on his business as 'Murugan Financiers' at Kallakurichi. He is an in-come tax assessee. It is the case of the plaintiff that on 27.7.1976 under Ex.A-2 a complaint was lodged by the defendant to the Sub Inspector of Police, Kallakurichi. Ex.A-3 is the First Information Report and Ex.A-1 is the paper publication made in 'Daily Thanthi' newspaper on 5.8.1976. In the light of Exs. A-2 and A-3, the plaintiff applied for anticipatory bail on 4.8.1976 and he was granted bail. Ex. A-3 is the case sheet extract. It is the case of the plaintiff that the complaint was given on 27.7.76, the said fact was intimated to the plaintiff on 27.12.1976 and the suit was filed on 7.12.1977. According to the plaintiff, as per Article 76 of the Limitation Act, the suit is filed within the period of one year. Due to the news item in Daily Thanthi, as borne out by Ex.A-1, it is the contention of the plaintiff that his relatives and friends approached him and enquired about the same. The plaintiff was defamed among his relatives and the public and the plaintiff underwent much mental agony. The false complaint lodged by the defendant against the plaintiff was the cause for all things. Totally he has claimed a sum of Rs. 2,500 as damages. According to the plaintiff, he values the damages for the false complaint at Rs. 1,000 and Rs. 1,500 towards the expenses spent forgetting anticipatory bail and for producing sureties before the Sub Divisional Judicial Magistrate for his release on bail. On the other hand, it is the case of the defendant that he has given a true complaint to the Sub Inspector of Police, Kallakurichi. The defendant has not made any publication in the Daily Thanthi and he was not responsible for the same. The present suit as framed is not maintainable. The suit is not for malicious prosecution and there is no averment in the plaint about malice. It is the further case that Ex. A-2 is dated 27.7.76. Under Section 75 of the Limitation Act, according to the defendant, the suit is to be filed on or before 27.7.76, however, the present suit was filed only on 7.12.1977. Hence, according to the defendant, the suit as framed is not maintainable and barred by limitation. The defendant has also contended that there is no libel and it is only mistake of fact and not a false complaint. Ex.A-8 shows that it is only a mistake of fact. He has also further contended that neither the police have arrested the plaintiff, nor asked the plaintiff to go to the police station.
8. The trial court, in the light of Ex. A-8, namely, the order of Sub Divisional Judicial Magistrate, Ulundurpet, holding that it is only a mistake of fact and there is no record to show that it was given out of malice, dismissed the suit. However, the lower appellate court after referring to Ex. A-2 complaint and in the light of Ex.A-7, came to the conclusion that the defendant acted without reasonable and probable cause in lodging Ex.A-2 complaint against the plaintiff and therefore, the defendant is liable to pay damages as claimed in the suit, accordingly, decreed the suit as prayed for. With regard to the limitation, the lower appellate court came to the conclusion that the suit has been filed by the plaintiff not only for defamation but also for malicious prosecution.
9. In order to explain the case, it is better to re-produce the relevant portion in Ex.A-2 complaint, which is extracted hereunder:-
In pursuance of Ex.A-2 complaint made by the defendant, the police nave investigated the matter and ultimately referred the case as mistake of fact. It is also useful to mention the conclusion of the police as seen from Ex.A-7. The said portion is extracted hereunder:-
It is seen that under Ex.A-2 dated 27.7.76 the above referred complaint was lodged by the defendant to the Sub Inspector of Police, Kallakurichi. Ex.A-3 is the copy of First Information Report. Ex.A-1 is the paper publication of Daily Thanthi news- paper which is dated 5.8.1976. In pursuance of the complaint and publication effected in Daily Thanthi, according to the plaintiff, he obtained an order of anticipatory bail under Ex.A-4 on 3.8.1976. Due to the publication effected under Ex.A-1, it is the case of the plaintiff that his relatives and friends approached him and enquired about the same, which defamed him among his relatives and the public, hence the plaintiff under- went much mental agony. The plaintiff has spent Rs. 1,500 for getting orders of anticipatory bail and for producing sureties and he has also added another Rs. 1000 towards damages for the false complaint. Altogether the plaintiff has claimed Rs. 2,500 towards damages from the defendant. On the other hand, it is admitted by the defendant that he has given a true complaint to the Sub Inspector of Police, Kallakurichi. He has denied the allegation that the defendant has made publication in Daily Thanthi. In other words, the defendant contended that he has not made any publication as per Ex.A-1. It is the further case of the defendant that the present suit is not maintainable, since there is no averment in the plaint about malice and there is no reasonable cause. The other important contention of the defendant is even as per Article 74 or 75 of the Limitation Act, the suit filed on 7.12.1977 is barred by limitation and the suit ought to have been dismissed on this ground.
10. It is not disputed by the defendant that he has made a complaint to the police. We have to find out whether the defendant had any genuine cause or grievance against the plaintiff. It is seen from Ex.A-2 that since the plaintiff refused to return his jewels even after discharge of loan amount only on the ground that he has failed to bring his friend, viz., Munusamy who, according to the plaintiff, introduced for the loan transaction. It is the further grievance of the defendant that he has received the loan by pledging his jewels and he is having receipt, hence in those circumstances, the plaintiff has to return the jewels after receipt of necessary loan amount. In other words, he contended that on the refusal by the plaintiff he has a genuine grievance which necessitated him to file the present complaint under Ex. A-2. After receipt of the complaint from the defendant, the police after investigation, found that it is a 'Mistake of Fact'. On the basis of the final report under Ex.A-7, the Inspector of Police obtained an order from the Sub Divisional Judicial Magistrate, Ulundurpet, for closing the case as 'Mistake of Fact' under Ex.A-8 on 13.12.1976. In those circumstances, namely, perusal of Ex.A-8, investigation report by the Inspector of Police and the ultimate order of the Magistrate for closing the case as mistake of fact under Ex.A-8 it cannot be said that 'the defendant had acted without reasonable and probable cause in lodging Ex.A-2 complaint against the plaintiff in the suit'. It is also incorrect to state that the 'allegations against the plaintiff made in Ex.A-2 complaint are false to the knowledge of the defendant. As stated by me earlier, in view of genuine grievance, namely, even after payment of loan amount, the plaintiff refused to release the pledged articles to the defendant only on the lame excuse of not discharging the other loan amount obtained by his friend viz., Munusamy. The plaintiff as a pawn broker on receipt of proper payment of the entire loan and on production of proper receipt, he has no other go except to release or return the pledged articles. In those circumstances, the defendant was justified in making a complaint against the plaintiff and it cannot be termed as false complaint or he acted without reasonable and probable cause. Even on a perusal of the documents filed by the plaintiff's side itself clearly shows that the finding of the lower appellate court cannot be sustained.
11. The other aspect of the learned counsel for the appellant is that there is no specific pleading in the plaint regarding malice. On the other hand, learned counsel for the respondent submitted that there are necessary averments in paragraphs 4 and 5 of the plaint regarding malice. It is settled law that an action for malicious criminal prosecution the plaintiff must prove the following points:-
(1) that the plaintiff was prosecuted by the defendant;
(2) that the prosecution ended in plaintiff's favour;
(3) that the defendant acted without reasonable and probable cause; and
(4) that the defendant was actuated by malice.
Now we have to find out first whether there are necessary ingredients in the plaint and whether the plaintiff has proved all the above mentioned four conditions in order to succeed in his attempt. As rightly pointed out by the learned counsel for the appellant, I am unable to find specific pleadings on par with the necessary ingredients referred to above in the plaint. In other words, the averments in the plant are general in nature, hence the contention of the learned counsel for the appellant is well-founded.
12. With regard to publication in the 'Daily Thanthi' as seen from Ex. A-l, it is the definite case of the defendant that he is not informed regarding the complaint made against the plaintiff. It is equally admitted by the lower appellate court that there is no evidence on the side of the plaintiff that the defendant gave any information for publication in the news-paper 'Daily Thanthi', hence the appellate court was right in holding that the defendant cannot be held for effecting publication in Daily Thanthi.
13. Regarding malicious prosecution, in a decision reported in C. Ambalam v. S. Jagannatha, : AIR1959Mad89 , learned single Judge of this court after reiterating the four points referred earlier, has held that in an action for malicious criminal prosecution the plaintiff must prove all the above mentioned four ingredients in order to succeed in his case. Since the above said principles have been well established, I am not discussing the facts in that case. The very same principles have been spoken to in another decision reported in G.J. Khona v. K. Damodaran, : AIR1970Ker229 . In the said decision, after pointing out the above mentioned four ingredients, the Division Bench has held that in a suit for malicious prosecution, all the above said four requirements have to concur or unite. If any of them is found lacking the suit must fail. While interpreting Articles 24, 25 and 36 of Limitation Act, 1908, the Lahore High Court has enunciated similar view as that of Kerala and Madras in Harnam Singh v. Doola Singh, AIR 1937 Lah. 709. Articles 24 and 25 of the old Limitation Act are similar to Articles 74 and 75 of the new Limitation Act. In the light of the above mentioned legal position, after perusing the various averments in the plaint, I am of the view that the plaintiff has not made out a case for malicious prosecution.
14. Coming to the other argument of the learned counsel for the appellant, namely, the present suit is barred by limitation. It is useful to refer Articles 74 and 75 of the Limitation Act, 1963.
Article 74
Description of SuitPeriod of limitationTime from which period begins to run
74. For compensation for malicious prosecutionOne yearWhen the plaintiff acquitled or the prosecution is other wise terminated.
Article 75
For compensation for libel.One yearWhen the libel is published
In order to file a suit for malicious prosecution under Article 74, the limitation in the present case starts from the second clause as pointed out in the said Article, viz., one year when the prosecution is otherwise terminated. Here in this case, the prosecution is terminated as seen from Ex.A-8 on 13.12.76. Admittedly the suit has been filed on 7.12.77, hence if the plaintiff's case is for malicious prosecution, then the suit filed on 7.12.77 is within the time. On merits I have already held that the plaintiff has failed to make out a case for malicious prosecution. If the present suit is for damages, then Article 75 is applicable and if it is so, one year period commences from the day when the libel is published. In this case, as seen from Ex.A-1, the libel is published in the Daily Thanthi on 5.8.1976. The suit has been filed on 7.12.77. In other words, if the present suit is only for defamation, the suit filed on 7.12.77 is clearly barred by limitation as per Article 75 of the Limitation Act. However, for the reasons best known to the appellate court, it came to the conclusion that the plaintiff has filed the present suit not only for malicious prosecution, but also for defamation. However, in view of my earlier conclusion on the merits of the case, the suit filed by the plaintiff has to be dismissed. The conclusion of the lower appellate court based on Exs.A-2 and A-7 is erroneous. It is well settled law that the finding which is not supported by acceptable evidence or based on mis-conception, this court can interfere in second appeal. Accordingly, the judgment and decree of the lower appellate court are set aside and the judgment and decree of the trial court are restored. The net result, the suit filed by the plaintiff is hereby dismissed. The second appeal is allowed with costs.